Wofford v. Vandiver

• Decision Date: 23 May 1945
• Docket Number: 30820.
• Parties: WOFFORD et al. v. VANDIVER.
• Court: Georgia Court of Appeals

34 S.E.2d 579

72 Ga.App. 623

WOFFORD et al. v. VANDIVER.

No. 30820.

Court of Appeals of Georgia, Division No. 1.

May 23, 1945

Rehearing Denied June 28, 1945.

Syllabus by the Court.

1. Both the court of ordinary and the superior court are courts of record, and no case is triable in either court without pleadings.

2. The caveat here filed was in the nature of a motion to open and vacate a regular and valid judgment of the court of ordinary during the term in which it was rendered, and allow objections to the appointment of the administrator. Such a motion was necessarily addressed to the discretion of the court. Deen v. Baxley State Bank, 192 Ga. 300, 304 15 S.E.2d 194; Bowen v. Wyeth, 119 Ga. 687, 46 S.E 823; Jones v. Garage Equipment Co., 16 Ga.App. 596, 85 S.E. 940; Sherman v.Stephens, 30 Ga.App. 509, 517, 118 S.E. 567; Landau Brothers v. Towery, 51 Ga.App. 113, 114(3), 179 S.E. 647; Moore v. Kelly & Jones Co., 109 Ga. 798(2), 35 S.E. 168.

3. The trial in the superior court of such a case on appeal 'is had without reference to the evidence introduced in the former trial and is a de novo investigation.'

4. 'When a case is on appeal any amendment, whether in the manner of form or substance, may be made which could have been made while the case was in the primary court.'

5. 'The new trial is had on papers connected with the case when the judgment was rendered, subject to proper amendment.'

6. Where the only objections filed to the appointment of an administrator were filed in the ordinary's court after the judgment of appointment, and not within the time required by law, the objections were wholly inoperative in that court, except in so far as the objections to the appointment of the administrator might have been relevant in connection with the motion made in the ordinary's court to open the judgment and allow the objections. And when on appeal to the superior court, that court properly held, as a matter of law, that the ordinary did not abuse his discretion in refusing to open the judgment and allow the objections; held: there were no operative pleadings (in this case written objections) in the superior court which made a case triable in that court, and the judge of the superior court did not err on motion of the defendant in error in dismissing the objectors' appeal from the ordinary's court.

On November 8, 1944, two days after Fred Vandiver, the defendant in error, had been appointed administrator on his mother's estate, and during the same term of the court of ordinary that the judgment was entered appointing him such administrator, the plaintiffs in error filed their caveat in the court of ordinary to the said application of Fred Vandiver and therein alleged: That the applicant was not a suitable person to be appointed as such administrator because he has an adverse claim against the estate; that the decedent is indebted to him; and that he has an interest in the property which these caveators aver belonged to decedent at the time of her death; that the caveators, during the same term of court at which the appointment was made, show to the court that they represent two-thirds interest in said estate and that they have selected in writing Mrs. Mae Wofford or the county administrator of Hall County as a proper person to be appointed, and move that the order entered by this court on the 6th day of November, 1944, be vacated and set aside and that a new order be made appointing the person selected by two-thirds majority of the heirs; that the failure to file this caveat on the first Monday, November 6th, was due to the oversight of their attorney who was engaged in another court at the time and who overlooked the filing of the caveat; prayed that the caveat be sustained, and that the judgment appointing Fred Vandiver be vacated and set aside and that Mrs. Mae Wofford or the county administrator be appointed. The ordinary then entered an order directing that the caveat be filed and further directed that Fred Vandiver show cause instanter why the prayers of the motion in the caveat should not be granted. On November 8, 1944, the caveat and order was duly acknowledged, and on November 13, 1944, while the term at which Fred Vandiver had been appointed was still open, the ordinary heard the case and entered the following order: 'This case coming on to be heard during the term at which the judgment was entered appointing the administrator and while the November term of court, 1944, was still open, after the evidence, it is ordered that the petition to vacate the order appointing the administrator be adhered to and the petition to vacate be refused. Done in open court, this 13th day of November, 1944.' On November 16, 1944, the caveators filed an appeal to a jury in the superior court of Hall County, after having paid all costs and having executed a regular appeal bond as required by law, which was approved by the ordinary on November 16, 1944. At the regular January term, 1944, of the superior court of said County the case came on to be heard and the judge of the superior court entered the following order dismissing the appeal: 'The with appeal coming on for trial, and on motion of counsel for appellee and it appearing to the court the petition was duly filed by Fred Vandiver to be appointed permanent administrator upon the estate of his mother, Mrs. G. C. Vandiver, citation issued and was duly published and no caveat or objections being filed, Fred Vandiver was appointed administrator on November 6, 1944, and on said date made application for surety bond, which was granted, signed, approved, and filed on November 8, 1944, while the court was still open, and on said date, November 8, 1944, a caveat and petition was filed to vacate the order of appointment and served on counsel for Fred Vandiver and a hearing was had on the caveat on November 13, 1944, and an order and judgment was entered refusing to vacate the order of appointment and now on motion the within appeal is dismissed as this court is without jurisdiction to disturb the discretion exercised by the ordinary in this case.' The caveators excepted to this judgment and the sole question for decision by this court is whether that judgment dismissing the appeal was error.

Wheeler, Robinson & Thurmond, of Gainesville, for plaintiffs in error.

E. C. Brannon, of Gainesville, for defendant in error.

MacINTYRE Judge.

The appeal in this case from the ordinary's court, coming on to be heard in the superior court, was by that court dismissed upon motion of the defendant in error. The appeal and the oriinal pleading, which was transmitted from the ordinary's court to the superior court, showed that the ordinary had refused to open the judgment...